# Elizabeth D. Duncan v. David B. Poythress > Court of Appeals for the Eleventh Circuit · December 12, 1985 · 777 F.2d 1508 URL: https://www.frixlaw.com/law-library/cases/9474263 ## Case - **Full name:** Elizabeth D. DUNCAN, Et Al., Plaintiffs-Appellants, v. David B. POYTHRESS, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** December 12, 1985 - **Citations:** 777 F.2d 1508; 82 A.L.R. Fed. 777; 1985 U.S. App. LEXIS 25207 - **Precedential status:** Published - **Opinion:** Dissent by Godbold - **Judges:** Godbold, Roney, Tjoflat, Fay, Vance, Kravitch, Johnson, Henderson, Hatchett, Anderson, Clark - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Kay v. Ehrler, 499 U.S. 432 (1991). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474263 ## How later opinions describe it (automated extraction) - explaining that the “advocate-witness” rule is an ethical prohibition against lawyers acting as both advocate and witness and clarifying that the “rule is not applicable to the attorney pro se litigant” - stating that a fee application under section 1988 must document hours ## Opinion text GODBOLD, Chief Judge, dissenting: The court took this case en banc to decide a legal question. It turns out that the case is not a proper vehicle for decision. The facts have not been sufficiently developed for the court to decide the case with assurance of correctness. I would remand this case to the panel for proper handling of the § 1988 issue, which would entail the parties stipulating to the facts or a remand to the district court for development of an adequate record covering what happened in the district court and *1517 in the Supreme Court. Without such a record we do not know whether the issue on which we took the case en banc is properly before us. Establishing Kathleen Kessler’s status as attorney for herself, in the district court or in the Supreme Court, or both, is a prerequisite for decision of the attorney fee issue. We do not know with certainty whether Kessler served as attorney for herself in the district court after she withdrew as co-counsel and was added as plaintiff. The parties are in dispute about this. The en banc court does not directly address whether as a matter of fact Kessler filed an appearance for herself in the district court, whether she performed acts as an attorney, whether the district court was aware that she purported to represent herself, or whether the district court, if unaware, would have permitted such representation if made aware. The court refers to Kessler’s having filed a brief for herself pro se before the Supreme Court. We do not know whether that Court labored under the same lack of facts concerning events in the district court that we labor under. Whether the Supreme Court, armed with all the facts, would have permitted Kessler to appear, and whether it might now say that her appearance was proper, are matters to which we do not know the answer. The court finesses the issue of the stage at which Kessler began representing herself by punting to the district court on remand. See footnote 14. The instruction to the district court, in footnote 14, that it must make a finding as to the stage in the proceeding at which Kessler began representing herself leaves open the possibility that the district court may find that at no time did Kessler ever represent herself in the district court. While not specifically stated in the court’s opinion, I assume that the district court also may find that Kessler did not represent herself in the Supreme Court, or if she attempted to do so that the attempt was not proper (for reasons stated in the “Second” point, below, or for any other reasons based upon presently unknown events in the district court or the Supreme Court). Second, in a situation where we do not know what actually occurred in the district court, the en banc court is intervening in a matter involving district court policy. Initially the district judge thought that Kessler should not be both attorney and witness; it has not been contended that the district court’s order requiring her withdrawal as co-counsel was erroneous. If the district court has not had an opportunity to rule on whether it would permit her to reappear (as counsel for herself) despite its prior and uncontested ruling that she could not be both counsel and witness, it is entitled to the first chance to rule. RONEY, Circuit Judge, dissenting, in which HENDERSON, Circuit Judge, joins: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is, ” said Alice, “whether you can make words mean so many different things.” “The question is, ” said Humpty Dumpty, “which is to be master — that’s all.” Alice was too much puzzled to say anything; ... 1 Although not too puzzled to say anything, I am puzzled enough to say very little. The sole source for the imposition of liability against the defendant for the prevailing plaintiff’s attorney’s fees in this case is 42 U.S.C.A. § 1988 . There Congress provided that in a suit such as this to enforce a provision of 42 U.S.C.A. § 1983 , “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” This case turns on the meaning of the word “attorney.” Although the majority believes the “plain language” of section *1518 1988 “does not preclude an award of fees to a lawyer representing herself,” we have simply been unable to find any definition which permits a decision that a pro se lawyer has an attorney. Set forth in an Appendix to this opinion are the definitions found in over two dozen dictionaries. Without exception they define the word “attorney” in terms of someone who acts for another, someone who is employed as an agent to represent another, someone who acts at the appointment of another. A basic principle of agency law is that “[t]here is no agency unless one is acting for and in behalf of another, since a man cannot be the agent of himself.” 2A C.J.S. Agency § 27, at 592. For there to be an attorney in litigation there must be two people. Plaintiff here appeared pro se. The term “pro se ” is defined as an individual acting “in his own behalf, in person.” 2 By definition, the person appearing “in person” has no attorney, no agent appearing for him before the court. The fact that such plaintiff is admitted to practice law and available to be an attorney for others, does not mean that the plaintiff has an attorney, any more than any other principal who is qualified to be an agent, has an agent when he deals for himself. In other words, when applied to one person in one proceeding, the terms “pro se ” and “attorney” are mutually exclusive. Of course, sometimes, like Humpty Dumpty, courts do play the master. See United States v. American Trucking Association, 310 U.S. 534 , 60 S.Ct. 1059 , 84 L.Ed. 1345 (1940). But when Congress has chosen words with discernible “plain meaning,” it is neither necessary nor proper for courts to do so. “Where the language of a statute is not ambiguous and does not lead to absurd results, the job of the courts is to apply it as written.” Arline v. School Bd. of Nassau County, 712 F.2d 759, 762 (11th Cir.1985). 3 There is little support anywhere upon which to rest a decision contrary to the common definition of the words used by Congress in this statute. The majority recites legislative history to justify giving pro se litigants attorney’s fees in the name of furthering the purposes of the Act. If one cabins the word attorney by its dictionary definition, however, there is not a shred of evidence that Congress would treat pro se litigants who happen to be attorneys differently from pro se litigants of other vocations, businesses or professions. Differences in qualification between attorneys and non-attorney pro se litigants would seem of little analytical use because in both instances the pro se party has necessarily prevailed in the litigation, just to make an attorney’s fees claim under section 1988. What a pro se plaintiff does for a living should be irrelevant for purposes of section 1988 analysis. The costs to an attorney in representing herself may in many instances be no greater than the costs to pro se litigants of other vocations taking time from their regular work to represent themselves. To argue that an attorney can be an attorney for herself, but a non-attorney cannot because she is not an attorney, is syllogistic at best, and at worst a path to a result without regard to the meaning of words. A pro se lawyer who attempts to act the attorney, rather than a party, has ethical problems not faced by the non-professional. Only if Congress passes a statute to permit all pro se parties, or pro se attorneys only, to obtain fees for themselves, however, should we be required to address the ethical and legal issues arising from attorneys testifying, attorneys receiving special treatment and non-attorneys receiving attorney’s fees. *1519 Here, plaintiff is by profession an attorney. In this case, however, she appeared pro se. She had no attorney representing her in this litigation. Since she had no attorney, the defendant should not have to pay any attorney’s fees. I see no objection, however, to the award of attorney’s fees earned while the plaintiff was an attorney, representing another, pri- or to her becoming a party herself. APPENDIX American Heritage Dictionary 140 (Second College Ed. 1982): attorney ... A person legally appointed to act for another, esp. an attorney at law. attorney at law ... One who is qualified to represent clients in a court of law and to advise them on legal matters; a lawyer. American Heritage Dictionary of the English Language 85 (1969): attorney ... A person legally appointed or empowered to act for another; especially an attorney at law____ attorney at law. One who is qualified to represent a party in a court of law and to prepare and manage his case; a lawyer. Black’s Law Dictionary 117-18 (5th ed. 1979): ATTORNEY. In the most general sense this term denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another____ In its most common usage, however, unless a contrary meaning is clearly intended, this term means “attorney at law”, “lawyer” or “counselor at law”.... The word “attorney” includes a party prosecuting or defending an action in person____ Attorney at law. Person admitted to practice law in his respective state and authorized to perform both civil and criminal legal functions for clients, including drafting of legal documents, giving of legal advise, and representing such before courts, administrative agencies, boards, etc. Bouvier’s Law Dictionary (Unabridged) 282-86 (Vol. I 1914): ATTORNEY. One put in the place, turn, or stead of another, to manage his affairs; one who manages the affairs of another by direction of his principal____ One who acts for another by virtue of an appointment by the latter____ Attorney in fact. A person to whom the authority of another, who is called the constituent, is by him lawfully delegated____ All persons who are capable of acting for themselves, and even those who are disqualified from acting in their own capacity, if they have sufficient under- . standing, as infants of a proper age, and femes coverts, may act as attorneys of others; ... Attorney-at-law. An officer in a court of justice who is employed by a party in a cause to manage the same for him. Britannica World Language Ed., Funk & Wagnalls New Practical Standard Dictionary 93 (1957): attorney ... A person empowered by another to act in his stead; especially, one legally qualified to prosecute and defend actions in a court of law; an attorney at law; a lawyer____ An agent. attorney at law. An attorney who is qualified to prosecute and defend actions in a court of law; ... Century Dictionary & Cyclopedia 374 (Vol. I A-B 1913) and 374 (Vol. I A-C 1911): attorney ... 1. One who is appointed by another to act in his place or stead; a proxy____ Specifically — 2. In law, one who is appointed or admitted in the place of another to transact any business for him____ An attorney at law, sometimes called a public attorney, is a person qualified to appear for another before a court of law to prosecute or defend an action on behalf of such other____ *1520 attorney ... The appointment of another to act in one’s stead; the act of naming an attorney____ Chambers Twentieth Century Dictionary 66 (1956): attorney ... one legally authorised to act for another: one legally qualified to manage cases in a court of law____ Comprehensive Etymological Dictionary of the English Language 125 (1966): attorney ... one authorized to act for another____ Concise Etymological Dictionary of Modem English 27 (1952): attorney ... to appoint, constitute____ Orig. one duly appointed to act for another. Concise Oxford Dictionary 60 (1976): attorney ... One appointed to act for another in business or legal matters ... qualified lawyer, esp. representing client in proceedings---- Dictionary of Obsolete English 17 (1958): Attorney. Seldom used now except of the attorney at law; being one, according to Blackstone’s definition, ‘who is put in the place, stead, or turn of another to manage his matters of law;’ and even in this sense it is going out of honour, and giving way to ‘solicitor.’ But formerly any who in any cause acted in the room, behalf, or turn of another would be called his ‘attorney:’ thus Phillips (New World of Words) defines attorney, ‘one appointed by another man to do anything in his stead, or to take upon him the charge of his business in his absence;’ Dictionary of Word Origins 32 (1945): attorney ... If you were in trouble, or were going away, you would select someone to turn to ... to represent you; this man was your attorney. Its first meaning was, one assigned to act for another; as still in the expression, power of attorney. When you take a detour, of course, you turn away form the main path. Funk & Wagnalls Encyclopedic College Dictionary 94 (1968): attorney ... A person empower by another to act in his stead; especially an attorney at law____ attorney at law An attorney who is qualified to prosecute and defend actions in a court of law; lawyer. Harper Dictionary of Contemporary Usage 54 (1975): attorney/attorney at law The former is a term that includes all kinds of lawyers. The latter specifically refers to a lawyer who is qualified to represent his clients in a court of law. Lexicon Webster Dictionary 65 (Vol. One A-Oyster 1976): attorney ... A legal agent who represents a client in legal affairs; • a lawyer; one who is legally appointed or admitted in the place of another to transact any business for him. Oxford American Dictionary 39 (1980): attorney ... a lawyer, especially one qualified to represent or act for persons in legal proceedings. Oxford Dictionary of English Etymology 61 (1966): attorney ... legal agent. Oxford English Dictionary 553-54 (Vol. I A-B 1933): Attorney ... 1. One appointed or ordained to act for another; an agent, deputy, commissioner. In later times only fig. and perhaps with conscious reference to sense____ 2. (Attorney in fact, private attorney.) One duly appointed or constituted ... to act for another in business and legal matters, either generally, as in payment, receipt, and investment of money, in suing and being sued, etc., or in some specific act, which the principal, by reason of absence, is unable to perform in person. Hence the contrast between ‘in person’ and ‘by attorney,’ frequent also in fig. senses____ 3. (Attorney-at-Law, public attorney.) A professional and properly-qualified legal agent practising in the courts of Common Law ... one who conducted litigation in these courts, preparing the case for the barris- *1521 ters, or counsel, whose duty and privilege it is to plead and argue in open court____ Oxford Illustrated Dictionary 45 (1962): attorney ... One appointed to act for another in business in legal matters. Oxford Universal Dictionary 120-21 (1933): Attorney ... 1. ... ‘one appointed,’ ... ‘one who acts in the turn of another’____ 1. One appointed to act for another, an agent, deputy, commissioner____ 2. {Attorney in fact, private attorney.) One duly appointed or constituted ... to act for another in business and legal matters, either generally, or in some specific act____ 3. (Attomey-atlaw, public attorney.) A properly-qualified legal agent practising in the courts of Common Law ... one who conducts litigation in these courts, preparing the case for the barristers, who plead in open court____ Attorney ... 2... The action of appointing a legal representative, procuration____ Attorney ... to perform by attorney. Random House Dictionary of the English Language (Unabridged) 96 (1967): attorney ... 1. a lawyer; attorney-at-law. 2. an attorney-in-fact, agent____ one (who is) turned to, i.e., appointed____ attorney-at-law ... an officer of the court authorized to appear before it as a representative of a party to a legal controversy. Shorter Oxford English Dictionary 120-21 (1933): Attorney ... 1. ... ‘one appointed’, ... ‘one who acts in the turn of another’____ 1. One appointed to act for another; an agent, deputy, commissioner ... 2. {Attorney in fact, private attorney.) One duly appointed or constituted ... to act for another in business and legal matters, either generally, or in some specific act____ 3. {attorney-at-law, public attorney.) A properly-qualified legal agent practising in the courts of Common Law ...; one who conducts litigation in these courts, preparing the case for the barristers, who plead in open court____ Attorney ... 2... The action of appointing a legal representative, ... procuration____ Attorney ... To perform by attorney— Webster’s Seventh New Collegiate Dictionary 57 (1969): attorney ... one who is legally appointed by another to transact business for him; ... a legal agent qualified to act for suitors and defendants in legal proceedings ____ Webster’s Third New International Dictionary 141 (1960): attorney ... one who is legally appointed by another to transact any business for him; ... a legal agent qualified to act for suitors and defendants in legal proceedings ____ attorney-at-law ... a practitioner in a court of law who is legally qualified to prosecute and defend actions in such court on the retainer of clients____ . Alice Through the Looking Glass, Lewis Carroll Ch. VI. . See Black’s Law Dictionary 1099 (5th ed. 1979): PRO SE. For himself; in his own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court. . New York, by rule, has defined "attorney,” as used in its civil practice rules, as including any party, whether lawyer or not, prosecuting or defending an action in person. New York C.P. L.R. § 105, McKinneys New York Consolidated Laws 7B § 105(c). See also Black's Law Dictionary 118 (5th ed. 1979). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474263. Public record. Not legal advice.